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Spare parts essential to the use of goods: a (first?) decree has been published
Article IT and Data Protection Intellectual Property, Media, and Art Law Competition, Retail and Consumer Law Commercial and International Contracts | 22/12/14 | 4 min. | Mahasti Razavi
The Decree relating to the obligation to provide information regarding availability of spare parts essential to the use of goods has just been published.
As a reminder, Article L.111-3, paragraph 1 of the French Consumer Code relating to spare parts provides that: “Manufacturers or importers of goods shall inform professional sellers of the period during which or the date up to which spare parts essential to the use of goods are available on the market. Such information shall be provided by sellers to consumers in legible form before the conclusion of the contract and shall be confirmed in writing, at the time of the purchase of the good.”
This text has given rise to many questions regarding in particular the scope and conditions of such double information obligation (information from manufacturers/importers to professional sellers and information from professional sellers to consumers).
Although Decree No.2014-1482 dated December 9, 2014 provides a certain number of answers regarding the above, some questions remain unanswered.
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1. Entry into force - Scope
The main contribution of this text is indisputably to specify that the provisions of Article L. 111-3 will only apply to “goods which are placed on the market for the first time as of March 1st, 2015.” In this respect, it is now clear that prior to such date, the obligations provided by the text do not apply and that companies which up until now have not complied therewith are not in breach of the law.
This being stated, the Decree does not specify, as it was expected to, whether the provisions of Article L.113-3 apply to all categories of goods which will be placed on the market for the first time as of March 1st, 2015. Indeed, if it is easily conceivable that such provisions will apply to household goods, the application thereof is however rather uncertain regarding certain items such as clothes, luggage or software. The question was the subject of debates during Parliamentary discussions and, given the lack of express clarification in the text, remains unresolved. Also, the Decree does not specify the exact meaning of “spare parts essential to the use of goods” although this was one of the most important questions that has been raised relating to the implementation of the text.
A second decree would therefore be indispensable to provide such further information, unless it is left up to the judges to refine thereafter the outlines of the text.
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2. Terms and conditions relating to the information to be provided
Regarding the terms and conditions of implementation of Article L.111-3, the Decree indicates in a general manner that within the framework of the relationships between manufacturers or importers and sellers, the information must appear on “any commercial document or any durable medium accompanying the sale of movable goods”.
Regarding the information provided by professional sellers to consumers: the Decree simply specifies that the information must appear “on all adapted medium”. The information must “also” appear “on purchase orders, if any, or on any durable medium recording or accompanying the sale”.
Thus, the Decree clarifies certain points but, given the generality of such recommendations, leaves inevitable practical questions unanswered. In particular: on which medium is the information to be confirmed in the event of a “physical” sales in the absence of purchase order? Is a receipt likely to constitute such “other durable medium recording or accompanying the sale”?
Furthermore, the specific content of the information to be provided is not mentioned. Therefore, the question of whether a “period of availability” must necessarily be indicated or of whether manufacturers can freely decide not to supply spare parts subject to such information being expressly and clearly provided to consumers is raised.
Finally, the Decree points out that the obligation provided in paragraph 2 of Article L.111-3 according to which “manufacturers or importers shall ensure the supply, within a period of two months, to those professional sellers or repairers, whether they are authorized or not, requesting spare parts essential to the use of the goods sold" is without prejudice to competition rules relating to selective and exclusive distribution networks. In other terms, the obligation to supply spare parts provided by Article L.111-3 does not entail the obligation for suppliers to supply spare parts to all professional sellers including those who are not part of their exclusive or selective network.
Mahasti Razavi, partner
Chloé Minet, counsel